Court File and Parties

Court File No.: CV-24-31 Date: 20241004 Superior Court of Justice - Ontario

Re: Royal and SunAlliance Insurance, Applicant And: Ontario Provincial Police, Respondent

Before: A. Kaufman J.

Counsel: Paul J. Barnes, Counsel, for the Applicant

Heard: In writing

Endorsement

[1] Royal and SunAlliance (RSA) seeks an order mandating the Ontario Provincial Police (OPP) to disclose records from its investigation into an August 31, 2021, motor vehicle accident. RSA, an insurance provider, is embroiled in a priority dispute with another insurer, Certas Home & Auto Insurance (Certas), over an accident involving Ms. Jamie-Lynne Whiteman, who is receiving statutory benefits from RSA.

[2] On March 11, 2024, RSA initiated a private arbitration under O. Reg 283/95 and the Arbitration Act, 1991 (the Act). Mr. Sampliner was appointed as arbitrator to resolve the priority dispute. A central issue in the arbitration is determining the vehicle's ownership. According to the motor vehicle accident report, the vehicle was owned by Logan Duffy, a previous Certas policyholder. However, during her examination, Ms. Whiteman denied any knowledge of Mr. Duffy, claiming the vehicle belonged to her roommate, Bill Hanna.

[3] The arbitrator ordered the OPP to release its investigation file, which would clarify vehicle ownership. However, the OPP refused to comply with the arbitrator’s order on the ground that arbitrators cannot compel third parties. The OPP requested that the applicant obtain a court order instead, to which it would not object if it included certain standard terms.

Analysis

[4] Arbitrators obtain their authority from the arbitration agreement and cannot order relief that would bind third parties. [1] However, the Arbitration Act, 1991 (the “Act”), allows courts to intervene in the arbitration process for specific, limited reasons. According to Section 6 1. of the Act, courts are empowered to assist in the “conducting of arbitrations”. Additionally, Section 29(4) provides that, upon a party's application, "the court may make orders and give directions with respect to the taking of evidence for an arbitration as if it were a court proceeding." [3]

[5] The central issue in this application is whether Section 29(4) of the Act provides sufficient scope for the Court to order third-party disclosure in advance of an arbitration. In my opinion, it does.

[6] Section 29(1) of the Act provides that the parties may serve a summons issued by the arbitral tribunal requiring a person to attend and give evidence at the arbitration. [4] This is a notable exception to the rule that arbitral tribunals cannot compel non-parties, but it only applies to attendance at the arbitration hearing itself, not to pre-hearing procedures, see: Alexander M. Gay, Alexandre Kaufman & James Plotkin, Arbitration Legislation of Ontario: A Commentary, 4th edition (Toronto: Thomson Reuters, 2023), page 420.

[7] Section 29(4), in contrast, empowers the Court to issue orders concerning the taking of evidence "for an arbitration." In my view, this language suggests that the provision is intended to cover situations where court intervention is sought to facilitate pre-hearing disclosure.

[8] The Court of Appeal for Alberta reached a similar conclusion, albeit in the context of an international arbitration, in Jardine Lloyd Thompson Canada Inc. v. SJO Caitlin. [5] In that case, the Court determined that while the arbitral tribunal itself could not compel a non-party to undergo discovery, it could request the court to issue such an order to support the arbitration. This decision was grounded in the International Commercial Arbitration Act, R.S.A. 2000, c. I-5, which adopts the Model Law on International Commercial Arbitration into Alberta law. Article 27 of the Model Law states:

The arbitral tribunal or a party with the approval of the arbitral tribunal may request from a competent court of this State assistance in taking evidence. The court may execute the request within its competence and according to its rules on taking evidence.

[9] In Link 427 General Partnership v. His Majesty the King, [6] the Court denied a request to enforce an arbitrator's interim order that required two former employees, who were non-parties to the arbitration, to attend examinations for discovery. Justice A.P. Ramsay highlighted that an arbitral tribunal does not have the authority to bind third parties, and Section 29(4) of the Act was not applicable in that case because the application before her sought to enforce an interim procedural decision rather than an order pertaining to the taking of evidence. In my view, if the application had been brought under s. 29(4) of the Act, the outcome could have been different.

[10] The word "may" in Section 29(4) emphasizes the discretionary nature of the relief. Here, I am convinced that granting the order is appropriate. First, the evidence sought is highly relevant; second, the requested relief against the non-party is not burdensome; and third, providing this assistance aligns with the legislative goals of resolving priority disputes efficiently through arbitration.

[11] The ownership of the motor vehicle is a crucial factor in the underlying priority dispute. The statutory framework, outlined in O. Reg. 283/95, provides a method for resolving insurer disputes through arbitration. Section 268(2) of the Insurance Act [7] specifies the priority rules to determine which insurer is responsible for paying statutory accident benefits, giving precedence to the occupant's auto insurer over the insurer of the accident vehicle's owner. The OPP’s investigative file is likely to provide insight into the vehicle's ownership.

[12] Secondly, the OPP does not oppose the relief sought, provided that the order is made by the court and that it contains certain standard terms. Similar orders are routinely granted under Rule 30.10 of the Rules of Civil Procedure [8] in the context of personal injury actions involving motor vehicles.

[13] Finally, granting the application aligns with the legislative goals of efficiently resolving priority disputes through arbitration. To make these arbitrations effective, it is appropriate for the court to provide its assistance, as permitted by Section 6 1. of the Act, enabling the parties to obtain the necessary evidentiary record.

Disposition

[14] The application is granted.

Justice A. Kaufman Date: October 4, 2024

COURT FILE NO.: CV-24-31 DATE: 20241004 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ROYAL AND SUNALLIANCE INSURANCE, Applicant – and – ONTARIO PROVINCIAL POLICE, Respondent

ENDORSEMENT

Mr. Justice Alexandre Kaufman

Released: October 4, 2024